I spent the second week of April in Tbilisi, Georgia, delivering training on Conciliation of Collective Labour Disputes*. As with all training courses, and journeys to other countries, I learnt a huge amount from the trip, so I thought I’d reflect on the key points through this blog-post.

Vocabulary

I’ve had numerous conversations in recent months about the language used in and around mediation and other alternative forms of dispute resolution. Conciliation and mediation are used interchangeably in Georgia, as they often are in the UK, but in many places around the world they have different meanings. This is something that I have increasingly noticed people find confusing. It gets worse when you start to debate whether or not your style of mediation is facilitative, evaluative or transformative, at which point people not involved in the profession often glaze over while ‘mediation geeks’ get excited about when they might employ each approach.

For my part, I think it would be better, in promoting the use of mediation (and other forms of ADR), for people to use consistent and, by preference, simpler terminology. This is a big enough topic for Scottish Mediation to have committed the whole of their Mediate 2019 conference this November, and titled it The Words We Use. It should be a fascinating discussion, and perhaps we can start to find some consensus.

Mediation as a voluntary process

Participants in the ITCILO Conciliation of Labour Disputes course in Tbilisi, April 2019, complete their final assessments.

A consistent theme raised by the participants in Georgia, many of whom were already experienced practicing mediators, related to the problems they face due to conciliation of collective disputes being a statutory step without which industrial action by a union would be illegal. This means people go into it as a necessary step in escalating their dispute rather than primarily as a means to resolve it. My main experience of compulsory mediation comes through the Employment Tribunal application system and the Scottish Sheriff Courts.

In the former, an applicant to the Tribunal has to go through ACAS Early Conciliation in order to get a code that allows them to complete the online ET application form. When this system was introduced, it was tied to applicants also paying a fee to the Tribunal service. As a result, few respondents (the employer against whom the Tribunal application is raised) had any incentive to engage with the process: regardless of the merits (or lack thereof) of the case, why conciliate when the applicant may not have enough money to submit their claim in the first place? The removal of the fees has resulted in an increasing number of applications people who were inhibited from applying because they couldn’t afford the fee. However, many respondents still seem reluctant to engage with the conciliation, and it’s difficult not to see that as a factor of it simply being part of the process rather than being seen as a genuine opportunity to find a mutually acceptable outcome.

With the Sheriff Courts, I have found many of the parties not yet ready to mediate, but having been ordered to do so. A significant majority have reached a agreement, but this has often involved significant preparatory work so they are better aware of the process they are entering and the opportunity it represents to have some control of the outcome. In such cases, the mediation is, however, genuinely voluntary so provides a real alternative to presenting their case in court with the associated stress, time and costs.

What does ‘success’ look like?

Following on from the above point, some of the mediators in Tbilisi were slightly despondent about their chances of success when starting a mediation. If the conciliation is just “part of the process” what are the chances it can be successful.

It’s tempting to see a successful mediation only as one that ends in agreement, but that’s not always possible, especially with collective disputes where Politics and politics are in play. In that sense, it could be a success to help the parties better understand the nature of the disagreement they’re having. Or to help them identify options for settlement, without them having actually determined any preference between them. Or simply to understand their own needs (as opposed to wants) as well as those of the other party.

Ultimately, the role of the mediator is to help parties on their journey to a mutually acceptable outcome. If that is at the start of the journey, perhaps it is success enough to point people in the right direction, while another mediator, later in the journey, might see them safely home.

Mediation has been around for a long time, and has been used very successfully in many, many situations.

Despite that, many employers have been slow to adopt mediation as an approach, often reluctant to put it in place early enough to prevent some situations becoming intractable. Indeed, it seems to be seen as an option of last resort.

Does this come from a lack of understanding of what mediation is and does? Or is it seen as an unnecessary additional expense? Whatever the reasons, the evidence suggests that it can be extremely successful, at least for those who believe it can be. ACAS research published in 2012 showed mediation to be significantly more successful where an employer genuinely commits to the process. Conversely, it is less effective where an employer is reluctant to use it. It is not unreasonable to conclude, therefore, that the results are to a large extent self-fulfilling prophecies.

The paradox is that the statistics also show that mediation is second only to direct communication in successfully resolving issues between employees.

In many cases, those trying it have done so with internal mediators. While there are clear benefits from in-house mediators, this approach also needs care to avoid individuals perceiving a mediator employed by their company as being less impartial. Whether or not that’s true is irrelevant, the perception is the key to the success of the process, so the results may not be what might have been hoped. As a result, internal mediation may not be the appropriate approach in all cases. Ultimately, the relative costs of employing an external mediator can pale into insignificance compared to the lost productivity that comes from letting a situation persist or deteriorate.

One conclusion was that one poor result can colour an employer’s view of the value of mediation as a whole. However, further ACAS research concluded:

more than four in five (82%) [employers] said it had resolved
the issues either completely or partly

A key benefit of mediation is that there is little to be lost in trying it. In this context, very few independent mediators would hesitate to have a conversation about their approach and to answer any questions that anyone involved might have. It is better for both those involved and their employer to enter with a genuine commitment to find a mutually acceptable outcome or it is less likely to succeed.

If you’d like to know more about the mediation and dispute resolution services offered by Strathesk Resolutions, please e-mail contact@strathesk.co.uk or call Malcolm on 07736068787.

The Office of National Statistics has recently published its latest figures around industrial disputes, one of the highlights being the record low number of days lost to strikes, with a similar low for other forms of industrial action. So, does this trumpet the success of the Trade Union Act 2016? In short, no.

To those of us involved in industrial relations the latest figures are unlikely to come as much of a surprise. The statistics around strikes have been running at record lows for a number of years now. What IS strange is that, unless they have a record of doing so, many employers remain reluctant to engage constructively with unions. This often seems to their being wedded to views of the role and operation of unions that weren’t even that accurate in the 1970s, from whence they originate. Indeed, if you genuinely want to communicate with your staff, the structure and training they can gain through a union presence can make the process significantly easier and more efficient.

So why have I attached a picture Charles de Gaulle airport? Well, mainly because French Air Traffic Control is virtually synonymous with “on strike”, and I was drawn to a recent article examining industrial relations in France and how it relates to the UK. An interesting factor in France is that union membership is only around 8%, meaning that it’s really only union representatives who join. This phenomenon was examined in Economist magazine back in 2014:

…the real source of French union strength today is the statutory powers they enjoy as joint managers, along with business representatives, of the country’s health and social-security system, and as employee representatives in the workplace. Under French law, elected union delegates represent all employees, union members or not, in firms with over 50 staff on both works councils and separate health-and-safety councils. These must be consulted regularly by bosses on a vast range of detailed managerial decisions. This gives trade unions a daily say in the running of companies across the private sector, which accounts for the real strength of their voice.

So, in effect, people in France don’t join trade unions because they don’t need to, so long as there are enough people willing to act on their behalf.

Returning to the UK, there has been a long-term downward trend in unions taking strikes, one that was well established well before the Trade Union Act 2016 kicked in to make taking industrial action more difficult. For the last several decades, unions have been adapting to increasingly exacting legal requirements to take industrial action, meaning it is still perplexing why the TUA 2016 was put in place at all (and it remains unclear if it is consistent with human rights legislation which enshrines the right to withdraw labour). Unions’ main approach has been to become more effective at influencing, better prepared to be persuasive negotiators and of more constructive value to employers that are prepared to engage constructively with them.

I’m currently working with several clients, some of whom face difficulties engaging collectively with their workforce because they lack representative structures, and others that simply want to improve how they interact with their unions to the benefit of everyone in the company. The common theme is that, if you want to avoid disagreements with your staff, discuss things with them substantively and discuss them early and, ideally, draw out any ideas they can add. The better people understand the problem, the better they will understand the solution.

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Trade Unions face big new fines

“The number of working days lost are at historically low levels when looking at the long-run monthly time series back to the 1930s.”

Sneaking past the radar, under cover of Brexit, the Government is running a number of consultations, including ones around the Trade Union Act 2016 and Corporate Governance. The Corporate Governance review deadline has passed, so the gathered information is now being collated and interpreted, but other elements are still in play. The consultation that caught my eye was consultation on the Certification Officer’s enforcement powers. This will introduce significantly tighter rules on the election for senior positions, vetting of candidates and the management of political funds, with unions facing fines of up to £20,000 if they breach those rules.

As is often the case, there’s a stick for when things go wrong, but no carrot to encourage a more positive approach to be deployed. The consultation in process doesn’t seem to be leveling the playing field so much as presenting another set of hurdles for unions to jump in order to be effective in representing the voices of their members.

Only last November Theresa May stated “…we will shortly publish our plans to reform corporate governance, including … proposals to ensure the voice of employees is heard in the boardroom.” at the CBI Conference. She backtracked pretty quickly, and the concept that staff have a valid (essential?) voice in the successful governance of businesses and charities was diluted in the document that was published, but it was still there. There is, therefore, an opportunity for employers to provide a channel for that voice.

And all of this comes at a time when strikes are at close to their recorded low – to quote from the Office of National Statistics report UK Labour Market: Mar 2017:

“The number of working days lost are at historically low levels when looking at the long-run monthly time series back to the 1930s.”

Yet, while CEOs across the land still proclaim their staff to be their biggest asset, most still decline to draw on staff knowledge of the business, the problems it faces and many possible solutions.

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

This extremely useful summary by David Morgan at Burgess Paull of the upcoming changes through the Trade Union Act caught my eye, and brought to mind some of the key issues surrounding the Act.

The existence of this legislation in the first place is a bizarre piece of ideological policy making, since it certainly isn’t/wasn’t responding to an actual need. To quote from the Office of National Statistics:

“The 2015 working days lost total (170,000) is not only lower than the total last year, but is the second lowest annual total since records began in 1891 (the lowest was 157,000 in 2005).”

As well as being of questionable need, the legality of the provisions has been questioned in many quarters, but most notably, perhaps by the Governments own Equality & Human Rights Commission. In January last year, the EHCR warned that the provisions may breach international law, stating:

“As it stands, the Trade Union Bill is in danger of imposing potentially unlawful restrictions on everyone’s basic human right to strike. Joining a trade union and peacefully picketing outside workplaces is a right not a privilege and restrictions have to be properly justified and proportionate.”

Although some changes were made before the Bill passed into law, research compiled by the Industrial Law Society suggests that these did little to address concerns in relation to human rights. If this latter article is correct, although we might have expected to see a number of challenges under Article 11 of the European Convention on Human Rights should employers opt to assert the new laws, these cases will be difficult to build and therefore may not emerge. Most of the large unions seem to be focusing their efforts on getting better organised, while experience shows that they will adapt to the new legal framework in spite of the additional inconvenience.

Interestingly, and in stark contrast to the Whitehall position, the Scottish Government announced in November 2016 that it was creating a Trade Union Modernisation Fund “to support modernisation of trade unions and help mitigate the negative impacts of UK legislation.” In that context, it will be interesting to see if there are differences of approach north and south of the border once the legislation has been enacted.

Of course, I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Mediation has been around for a long time, and has been used very successfully in many, many situations. Despite that, I have found many employers quite slow to adopt mediation as an approach, and often reluctant to put it in place early enough to prevent some situations becoming intractable. In some cases, it seems to be an option of last resort rather than a means to head problems off at the pass.

Part of this seems to come from a lack of understanding of what mediation is and does, part of it from seeing it as an additional expense. In many cases, those that have tried have done so using internal mediators – while that may work in some situations, staff tend to perceive a mediator employed by their company as having a conflict of interests that means they can’t be impartial. Whether or not that’s true is irrelevant, the perception is the key to the success of the process, so the results have perhaps not been what might have been hoped. But the relative costs of employing an external mediator will often pale into insignificance compared to the lost productivity that comes from letting a situation persist or deteriorate.

Interestingly, ACAS research published in 2012 showed that mediation is significantly more successful in workplaces where the employer is genuinely committed to the process, less so where they are reluctant to use it – so the results are, to a large extent, self-fulfilling prophecies. The paradox is that the statistics also show that mediation is second only to direct communication in successfully resolving issues between employees.

One conclusion from the ACAS research was that one poor result can colour an employer’s view of the value of mediation as a whole. To a large extent, one of the benefits of mediation is that there is little to be lost in trying it, but please do so with a genuine commitment to find mutually acceptable solutions or it is less likely to succeed.

If you’d like to know more about the mediation and dispute resolution services offered by Strathesk Resolutions, please e-mail contact@strathesk.co.uk or call Malcolm on 07736068787.

We draw on years of experience working collaboratively and constructively to achieve the right outcome to complex industrial relations situations. We deliver straightforward advice, training and solutions that encourage and develop relationships based on understanding, cooperation and trust.

Our open and honest approach ensures fairness to all sides whilst guaranteeing the needs of both the individual and the organisation are properly considered. Having worked with Trade Unions for years we understand the need for clear and concise communication, whilst influencing and negotiating in an expert manner.

You can expect us to thoroughly explore your problems, ensuring that we properly understand the problem before we start working towards a solution. We will also keep an open line of communication to ensure that you are fully aware and involved in developing approaches.

The long and the short of it is that nothing will change immediately – the impact of European case law remains unchanged, albeit the vast, vast majority of case law originates through the UK’s Employment Tribunal system (primarily at EAT and Court of Appeal).

EU Directives on Employment Law are implemented through enactment into UK Legislation, usually by Regulation, less frequently by primary legislation. In this respect, many of the laws that have originated from the EU have become workplace norms (e.g. protection of fixed-term workers and part-time workers).

There is a risk that more recent and less accepted legislation may be under pressure to be repealed (e.g. Regulations on Agency Workers). There may also be changes over time in relation to the calculation of holiday pay and accrual of annual leave during sickness absence.

No doubt a surprise to many, there are various aspects of Employment Law where the UK provides greater than that stipulated by EU Regulations. This covers holiday rights, protection against discrimination, TUPE (which covers service provision transfer in the UK, unlike elsewhere in Europe), etc.

That said, companies working throughout Europe and currently depending on UK laws to meet the requirements for a European Works Council may need to review their arrangements.

What about the rights of EU Nationals to work in the UK? Well, it’s again difficult to say as yet, but special permissions may be needed to work here in future, perhaps with sponsorship, as is the case for non-EU nationals, but in the meantime, EU nationals working here are entitled to stay and continue working. The main protagonists on the Leave side made contradictory statements, so it is difficult to tell what may change, though Theresa May stated a desire to clarify this point quickly, while Nicola Sturgeon has moved to say their position is secure in Scotland.

But what will happen if there are non-UK nationals applying for jobs now? If they are employed, they may be forced to leave in a year or two’s time, but NOT employing them because of that would currently be illegal discrimination.

The UK currently already has a points based system for non-EU nationals which COULD be extended, at least for skilled workers, though Tier 3 (unskilled workers) would need to be reactivated. There hasn’t been a need for non-EU unskilled workers because that gap has been filled from within the EU, but that source is clearly likely to dry up as/when the UK withdraws from the Single Market. If employers have a need for unskilled workers that they can’t meet from domestic recruitment, this needs to be flagged up with the Government.

So, the Trade Union Act slunk onto the Statute Book on 5th May. We now know what it says, but do we know what it means?

The short answer is “sort of”, but it’s very close to “not really”…

What we do know is that among other things:

any industrial action needs to follow a ballot with a minimum 50% turnout

ballot papers must make clear the dispute and the action proposed

14 days notice of specific action must be given to employers

in “important public services” ballots must also be supported by at least 40% of eligible voters

We don’t actually know as yet when the provisions will come into force, but there are several other uncertainties at this stage as well. For example, it has yet to be defined which public services are deemed “important”, though we can probably predict that it will include Health and Education. Furthermore, as with all laws, the final impact will be shaped by cases that go through the courts so, with questions remaining on the impact of this legislation on workers’ human rights, there may be uncertainty for some time.

What is clear is that the impact in the devolved administrations will, for the foreseeable future, be minimal as the Governments in Scotland, Northern Ireland and Wales have all said that they won’t be implementing the provisions of the Act. So what can we expect to see in England?

Well, the intention behind the Act is clearly stated as making it more difficult for trade unions to take legal industrial action, particularly in what are being called “important public services”. This seems to have been a response to disputes in recent years where some unions have proceeded to industrial action with significantly lower turnout than is now being demanded. A collective breath of relief will have been taken amongst all unions that the threat to allow employers to hire agency staff to complete strikers’ work was dropped from the final legislation.

The Government has recently taken a bloody nose in relation to it’s plan to do away with “check-off”, the mechanism by which union subscriptions are paid direct from people’s salaries, in spite of that system having little or no cost for employers. Having now established through the courts that DWP’s implementation of that approach was unlawful, the Government now risks claims for compensation from the unions that have been affected.

The unions had responded through consultation on the Trade Union Bill that it was unreasonable to dictate the levels of turnout while the Government insisted that they continue to conduct ballots by paper and post. In that context, it’s interesting to note the concession that there will now be an independent review of electronic balloting. In spite of that, it is also worth highlighting that there have been many troublesome disputes, notably the ongoing one with Junior Doctors in England, where the turnout has significantly exceeded those imposed by the new strictures.

Given that, it remains the best approach for employers, especially those who are not bound by Government instruction, to work with their staff, including the unions where they are present, to make sure they avoid the dispute in the first place.

While my previous career involved mediating between various parties on a regular basis, I’d never had my skills in this respect properly reflected through accreditation, so I decided it was time to address that. Thanks to training provided by The Mediation Partnership, I am now accredited mediator.

The training was both interesting and challenging, featuring a number of role play scenarios that were outside of my previous experience and allowed a wide-ranging exploration of approaches and techniques to develop my skills.